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Rumors, Frustration Abound as SCOTUS Has 11 Cases, 1 Week Left

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By William Peacock, Esq. on June 21, 2013 3:50 PM

We get it. Many of us have been waiting months, if not years, for the Supreme Court to chime in on marital equality and affirmative action (again). Each week, obsessed SCOTUS fans and critics wake up at 6:00 a.m. (PST), click on to SCOTUSblog's live coverage, and expect to see a landmark decision. Instead, we get raisins and arbitration.

Now, with one scheduled opinion release date left (and unscheduled days likely to follow), there are eleven cases remaining. That begs the questions:

Why are they procrastinating? What's taking so long? Why hasn't the affirmative-action case been decided at any point in the last eight months? What does this mean for the holdings?

Andrew Cohen, at The Atlantic, vents his frustrations about the delay and argues that the Supreme Court owes it to us to move faster, even while acknowledging that leaving the controversial opinions for last is a long-standing practice. He, quite correctly, points out that if they dump eleven important cases (well, not all of those are that important), that some will be glossed over by the limited amount of media coverage available in a single day or week.

Meanwhile, the Daily Beast defends the court with an excellent recap of the process that difficult cases follow. A fractured decision is going to take longer (and be released at the end of the term) because judges have to circulate opinions, concurrences, and dissents, attempt to find consensus, and address each others’ arguments.

Other speculation de jour that seems to be circulating is that the long-delayed Fisher v. University of Texas affirmative-action decision, argued in October, with no resolution to date, may be held over to be decided in concert with Schuette v. Coalition to Defend Affirmative Action, a case that asks whether banning preferential treatment is a violation of the Equal Protection Clause. Of course, the court itself is very secretive, so the speculation is likely just the educated guessing of frustrated SCOTUS followers.

That would explain the long delay, though we’d imagine that they would’ve made the decision to hold over the case by now. Then again, that Citizens United catastrophe was held over at the last minute in 2009. A last-minute non-decision is hardly unprecedented, especially if the court feels that the two cases, decided in concert, could help to clarify the law regarding affirmative action.

Fisher or no Fisher, next week is going to be huge. We’ll have the recaps, and our thoughts, as soon as the opinions are released.

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